[Congressional Bills 113th Congress]
[From the U.S. Government Publishing Office]
[S. Res. 487 Introduced in Senate (IS)]

113th CONGRESS
  2d Session
S. RES. 487

   Expressing the sense of the Senate that Attorney General Eric H. 
     Holder, Jr. should appoint a special counsel or prosecutor to 
   investigate the targeting of conservative nonprofit groups by the 
                       Internal Revenue Service.


_______________________________________________________________________


                   IN THE SENATE OF THE UNITED STATES

                             June 26, 2014

Mr. Cruz submitted the following resolution; which was referred to the 
                       Committee on the Judiciary

_______________________________________________________________________

                               RESOLUTION


 
   Expressing the sense of the Senate that Attorney General Eric H. 
     Holder, Jr. should appoint a special counsel or prosecutor to 
   investigate the targeting of conservative nonprofit groups by the 
                       Internal Revenue Service.

Whereas, in February 2010, the Internal Revenue Service (IRS) began targeting 
        conservative nonprofit groups for extra scrutiny in connection with 
        applications for tax-exempt status;
Whereas, on May 14, 2013, the Treasury Inspector General for Tax Administration 
        (TIGTA) issued an audit report entitled, ``Inappropriate Criteria Were 
        Used to Identify Tax-Exempt Applications for Review'';
Whereas the TIGTA audit report found that from 2010 until 2012, the IRS 
        systematically subjected tax-exempt applicants to extra scrutiny based 
        on inappropriate criteria, including use of the phrases ``Tea Party'', 
        ``Patriots'', and ``9/12'';
Whereas the TIGTA audit report found that the groups selected for extra scrutiny 
        based on inappropriate criteria were subjected without cause to delays 
        lasting years;
Whereas the TIGTA audit report found that the groups selected for extra scrutiny 
        based on inappropriate criteria were subjected to unreasonable and 
        burdensome information requests, including requests for information 
        about donors and political beliefs;
Whereas the Exempt Organizations Division within the Tax-Exempt and Government 
        Entities Division of the IRS has jurisdiction over the processing and 
        determination of tax-exempt applications;
Whereas, on September 15, 2010, Lois G. Lerner, former Director of the Exempt 
        Organizations Division, initiated a project to examine political 
        activity of organizations described in section 501(c)(4) of the Internal 
        Revenue Code of 1986, writing to her colleagues, ``[w]e need to be 
        cautious so it isn't a per se political project'';
Whereas, on February 1, 2011, Lois Lerner wrote that the ``Tea Party matter 
        [was] very dangerous'' and ``[t]his could be the vehicle to go to court 
        on the issue of whether Citizen's [sic] United overturning the ban on 
        corporate spending applies to tax exempt rules'';
Whereas Lois Lerner ordered the Tea Party tax-exempt applications to proceed 
        through a ``multi-tier review'' involving her senior technical advisor 
        and the IRS Office of Chief Counsel;
Whereas Carter Hull, an IRS lawyer and a 48-year veteran of the United States 
        Government, testified that the ``multi-tier review'' was unprecedented 
        in his experience;
Whereas, on June 1, 2011, Holly Paz, Director of Rulings and Agreements within 
        the Exempt Organizations Division, requested the tax-exempt application 
        filed by Crossroads Grassroots Policy Strategies for review by Lois 
        Lerner's senior technical advisor;
Whereas, on March 22, 2012, Commissioner of Internal Revenue Douglas Shulman was 
        specifically asked about the targeting of Tea Party groups applying for 
        tax-exempt status during a hearing before the Committee on Ways and 
        Means of the House of Representatives, to which he replied, ``I can give 
        you assurances . . . [t]here is absolutely no targeting'';
Whereas, on April 26, 2012, Lois Lerner informed the Committee on Oversight and 
        Government Reform of the House of Representatives that information 
        requests were done in ``the ordinary course of the application 
        process'';
Whereas prior to the November 2012 election, the IRS provided 31 applications 
        for tax-exempt status to the investigative website ProPublica, all of 
        which were from conservative groups and 9 of which had not yet been 
        approved by the IRS, in spite of a prohibition under Federal law against 
        public disclosure of application materials until after the application 
        has been approved;
Whereas the IRS determined, by way of informal, internal review, that 75 percent 
        of the applications for designation as an organization described in 
        section 501(c)(4) of the Internal Revenue Code of 1986 that were set 
        aside for further review were filed by conservative-oriented 
        organizations;
Whereas, on January 24, 2013, Lois Lerner wrote, in an e-mail to colleagues, 
        regarding Organizing for Action, a tax-exempt organization formed as an 
        offshoot of the election campaign of President Barack Obama: ``Maybe I 
        can get the DC office job!'';
Whereas, on May 8, 2013, Richard Pilger, Director of the Election Crimes Branch 
        of the Public Integrity Section of the Department of Justice, spoke to 
        Lois Lerner about potential prosecution for false statements about 
        political campaign intervention made by tax-exempt applicants;
Whereas, on May 10, 2013, in response to a pre-arranged question, Lois Lerner 
        apologized for the targeting of conservative tax-exempt applicants by 
        the IRS during a speech at an event organized by the American Bar 
        Association;
Whereas the Committee on Ways and Means of the House of Representatives 
        determined that, of the 298 applications delayed and set aside for 
        additional scrutiny by the IRS, 83 percent were from right-leaning 
        organizations;
Whereas the Committee on Ways and Means of the House of Representatives 
        determined that, as of the May 10, 2013, apology from Lois Lerner, only 
        45 percent of the right-leaning groups set aside for extra scrutiny had 
        been approved, while 70 percent of left-leaning groups and 100 percent 
        of the groups with ``progressive'' names had been approved;
Whereas the Committee on Ways and Means of the House of Representatives 
        determined that, of the groups that were inappropriately subject to 
        demands to divulge confidential donors, 89 percent were right-leaning;
Whereas, on May 15, 2013, Attorney General Eric H. Holder, Jr. testified before 
        the Committee on the Judiciary of the House of Representatives that the 
        Department of Justice would conduct a ``dispassionate'' investigation 
        into the IRS matter, and ``[t]his will not be about parties . . . this 
        will not be about ideological persuasions . . . anybody who has broken 
        the law will be held accountable'';
Whereas, on May 15, 2013, President Barack Obama called the targeting of 
        conservative tax-exempt applicants by the IRS ``inexcusable'' and 
        promised that he would ``not tolerate this kind of behavior in any 
        agency, but especially in the IRS, given the power that it has and the 
        reach that it has into all of our lives'';
Whereas Barbara Bosserman, a trial attorney at the Department of Justice who in 
        the past several years has contributed nearly $7,000 to the Democratic 
        National Committee and political campaigns of President Obama, is 
        playing a leading role in the investigation by the Department of 
        Justice;
Whereas the Public Integrity Section of the Department of Justice communicated 
        with the IRS about the potential prosecution of tax-exempt applicants;
Whereas, on December 5, 2013, President Obama declared in a national television 
        interview that the targeting of conservative tax-exempt applicants by 
        the IRS was caused by a ``bureaucratic'' ``list'' by employees in ``an 
        office in Cincinnati'';
Whereas, on April 9, 2014, the Committee on Ways and Means of the House of 
        Representatives referred Lois Lerner to the Department of Justice for 
        criminal prosecution;
Whereas the Committee on Ways and Means of the House of Representatives found 
        that Lois Lerner used her position to improperly influence agency action 
        against conservative tax-exempt organizations, denying these groups due 
        process and equal protection rights as guaranteed by the United States 
        Constitution, in apparent violation of section 242 of title 18, United 
        States Code;
Whereas the Committee on Ways and Means of the House of Representatives found 
        that Lois Lerner targeted Crossroads Grassroots Policy Strategies while 
        ignoring similar liberal-leaning tax-exempt applicants;
Whereas the Committee on Ways and Means of the House of Representatives found 
        that Lois Lerner impeded official investigations by knowingly providing 
        misleading statements to TIGTA, in apparent violation of section 1001 of 
        title 18, United States Code;
Whereas the Committee on Ways and Means of the House of Representatives found 
        that Lois Lerner may have disclosed confidential taxpayer information, 
        in apparent violation of section 6103 of the Internal Revenue Code of 
        1986;
Whereas former Department of Justice officials have testified before a 
        subcommittee of the Committee on Oversight and Government Reform of the 
        House of Representatives that the circumstances of the investigation by 
        the administration of the targeting of conservative tax-exempt 
        applicants by the IRS warrant the appointment of a special counsel;
Whereas Department of Justice regulations counsel attorneys to avoid the 
        ``appearance of a conflict of interest likely to affect the public 
        perception of the integrity of the investigation or prosecution'';
Whereas, on January 13, 2014, unnamed officials in the Department of Justice 
        leaked to the media that no criminal charges would be appropriate for 
        IRS officials who engaged in the targeting activity, which undermined 
        the integrity of the investigation by the Department of Justice;
Whereas, on January 29, 2014, Attorney General Holder told the Senate Committee 
        on the Judiciary, ``I don't think that there is a basis for us to 
        conclude on the information as it presently exists that there is any 
        reason for the appointment of the independent counsel . . . . The notion 
        that somehow this has caused a loss of faith in this Justice Department 
        is inconsistent with the facts'';
Whereas, on February 2, 2014, President Obama stated publicly that there was 
        ``not even a smidgen of corruption'' in connection with the IRS 
        targeting activity;
Whereas, on April 16, 2014, e-mails between the Department of Justice and the 
        IRS were released showing that the Department of Justice considered 
        prosecuting conservative nonprofit groups for engaging in political 
        activity that is legal under Federal law, which damaged the integrity of 
        the Department of Justice and undermined its investigation;
Whereas, on May 8, 2014, the IRS agreed to provide all of Lois Lerner's e-mails 
        to investigators of the Committee on Ways and Means of the House of 
        Representatives;
Whereas, on May 14, 2014, e-mails obtained through a request under section 552 
        of title 5, United States Code (commonly known as the ``Freedom of 
        Information Act'') by the nonprofit group Judicial Watch indicate that 
        the Washington office of the IRS was examining applications for tax-
        exempt status by Tea Party organizations, which is contrary to claims 
        that the cases were being handled by lower-level workers in Cincinnati;
Whereas, on June 11, 2014, James Comey, Director of the Federal Bureau of 
        Investigation (FBI), testified to the Committee on the Judiciary of the 
        House of Representatives that FBI investigators did not examine the IRS 
        database with taxpayer information, which included private taxpayer 
        information that is prohibited from being shared without an order from a 
        judge, and only looked at the table of contents;
Whereas, on June 13, 2014, IRS Office of Legislative Affairs Director Leonard 
        Ourlser informed the Committee on Finance of the Senate that the IRS 
        could not produce e-mails from January 2009 through April 2011 from Lois 
        Lerner due to a computer crash;
Whereas, on June 17, 2014, the IRS stated that it could not produce e-mails from 
        6 other IRS employees;
Whereas, on June 23, 2014, it was reported that Commissioner of Internal Revenue 
        John Koskinen has contributed approximately $100,000 to Democratic 
        candidates and organizations, including $7,300 to President Obama;
Whereas, on June 24, 2014, it was reported that the IRS agreed to pay $50,000 in 
        damages to one of the conservative groups, the National Organization for 
        Marriage, as a result of the unlawful release of confidential 
        information to a political rival of that group;
Whereas, on June 25, 2014, according to the Committee on Ways and Means of the 
        House of Representatives, Lois Lerner sought to have Senator Chuck 
        Grassley, a sitting United States Senator and ranking Republican member 
        of the Committee on the Judiciary of the Senate, referred for IRS 
        examination; and
Whereas section 600.1 of title 28, Code of Federal Regulations, promulgated 
        under section 515 of title 28, United States Code, requires the Attorney 
        General to appoint a special counsel or prosecutor when it is determined 
        that--

    (1) a criminal investigation of a person or matter is warranted;

    (2) investigation or prosecution of that person or matter by a United 
States Attorney's Office or litigating Division of the Department of 
Justice would present a conflict of interest for the Department or other 
extraordinary circumstances; and

    (3) under the circumstances, it would be in the public interest to 
appoint an outside special counsel or prosecutor to assume responsibility 
for the matter: Now, therefore, be it

    Resolved, That it is the sense of the Senate that--
            (1) the statements and actions of the Internal Revenue 
        Service (IRS), the Department of Justice, and the 
        administration of President Barack Obama in connection with the 
        targeting of conservative tax-exempt applicants by the IRS have 
        served to undermine the investigation by the Department of 
        Justice;
            (2) the efforts of the administration to undermine the 
        investigation by the Department of Justice, and the appointment 
        of Barbara Bosserman, who has donated almost $7,000 to 
        President Obama and the Democratic National Committee, to a 
        lead investigative role, have created a conflict of interest 
        that warrants removal of the investigation from the normal 
        processes of the Department of Justice;
            (3) further investigation of the matter is warranted due to 
        the apparent criminal activity by Lois Lerner, former Director 
        of the Exempt Organizations Division within the Tax-Exempt and 
        Government Entities Division of the IRS, and the ongoing 
        disclosure of internal communications showing potentially 
        unlawful conduct by executive branch personnel;
            (4) appointment of a special counsel or prosecutor would be 
        in the public interest, given the conflict of interest for the 
        Department of Justice and the strong public interest in 
        ensuring that public officials who inappropriately target 
        individuals for exercising their right to free expression are 
        held accountable; and
            (5) Attorney General Eric H. Holder, Jr. should appoint a 
        special counsel or prosecutor, with meaningful independence, to 
        investigate the targeting of conservative nonprofit advocacy 
        groups by the IRS.
                                 <all>